Cincinnati excessive force case

A dispute over the death of a man in police custody eight years ago moved a step closer to getting to trial last Wednesday , with Southern Ohio District Court Judge Susan Dlott's issuing an order that clears the way in a case determining whether Cincinnati Police used excessive force in an altercation back in 2003 in which police were accused of failing to take proper measures that might have prevented a suspect’s death .

Cincinnati.com this morning reported “the case – which claims some of the officers used excessive force while subduing the 350-pound suspect and others failed to follow their training when they left him handcuffed on his stomach, which the coroner later ruled contributed to death by asphyxiation -- had been bogged down for years as attorneys on both sides argued over technical points that only recently were resolved in appeals courts.

Dlott also ruled that several police supervisors, city officials and former Chief Tom Streicher could not be held liable for Jones' death and would be dropped from the case.

In 2008 defendants appealed the district court’s (1) denial of the motion to dismiss the claims against the City, Chief of Police, City Manager, and several police officers for use of excessive force and for failure to provide adequate medical care; and (2) denial of the motion to dismiss the claim against Police supervisors for failure to provide adequate medical care. The Sixth Circuit there “affirmed the decision of the district court and remanded the case for discovery, summary judgment, and, if necessary, a trial to resolve the disputed factual issues,” which is where we are now. ( Here )

Ohio Supreme Court Rule of Practice changes

The Ohio Supreme Court’s reminding attorneys practicing in the Supreme Court of Ohio to take note of a few changes to the Rules of Practice taking effect tomorrow. ( Announcement )

Ohio death penalty update

USAToday this morning noted Ohio inmates once again asking Southern District Judge Gregory Frost find the state's rules for carrying out executions unconstitutional.-

Attorneys for the death row prisoners say the Department of Rehabilitation and Correction continues to use an arbitrary process with undertrained executioners that still gives the state too much discretion toabandon its rules at the last-minute during an execution, and thereby resulting in potentially cruel and unusual injection methods.

Judge Frost had halted the execution of Kenneth Smith back in July after agreeing that Ohio's process was haphazard and has yet to rule on the updated procedures meant to address his concerns. (Here)

Gov. John Kasich has thus far postponed two executions and granted mercy to a third inmate since Frost's ruling, and, earlier this month, the state's supreme court announced the formation of a joint task force to review state death penalty provisions to determine if changes should be made. An important caveat there is that tt won't be debating whether or not Ohio should have capital punishment. (See prior posting here)

State Rep. Terry Blair introduced legislation back in March to abolish the death penalty in Ohio and replace it with life imprisonment without parole for the worst crimes. ( HB 160 analysis)

New Ohio child support statutes

USAToday this morning is carrying an article about the “changes to Ohio's child support laws that mean that parents who pay at least half of their court-ordered support will no longer face suspension of their driver's or professional licenses,” noting a more expansive Columbus Dispatch article yesterday.

Those changes go into effect Wednesday.

The changes in particular being referred to were tacked on to the recently-passed state budget, but, as noted in the Dispatch article, also “come on the heels of sentencing-reform law in HB 86 that encourages judges to sentence non-payers to probation or community service instead of jail.”

The Dispatch article noted, Donald Hubin-- chairman of Fathers and Families of Ohio, a national 501(c)3 not-for-profit charitable organization that seeks better lives for Ohio's children through family court reform that establishes equal rights and responsibilities for fathers and mothers,-- having said, that “for years, many child-support policies have been predicated on the assumption that parents were able, but unwilling, to pay, but that’s not the case. The vast majority of overdue child support is owed by parents who can’t pay it with two-thirds of the money being owed by people who earn less than $10,000 a year.”

( Summary of budget bill portion )( Sentencing Reform summary)

New Penalty Charts for Portions of Ohio Traffic Law

Judge Jennifer P. Weiler of Garfield Heights Municipal Court posted penalty charts, now in effect for Ohio OVI/Physical Control Misdemeanor Offense Penalties and Ohio Driver's License Offense Penalties. See http://www.ghmc.org/charts.asp for more information.

(Legislative Summary of HB 5)

Caylee's laws

An article on USAToday.com this mornings mentioning the maybe dozen states which have some version of Florida's “Caylee's Law” introduced since Casey Anthony's acquittal in the death of her daughter last July, among them HB 299 and SB 203 in Ohio, and HB 27, HB 29, and SB 12 in Kentucky.

USAToday reported a survey it had done showed legislators in at least 25 states have introduced or pledged to introduce versions of what has been dubbed Caylee's Law., with 12 of them already having bills introduced, but none, as yet, having passed and becoming law. The National Conference of State Legislatures lists eight states, along with Florida, as of July, having such legislation.

Eyewitness Testimony

A CNN.com article Wednesday reported that “each year, 75,000 witnesses identify criminal suspects. Yet, as the New Jersey Supreme Court has acknowledged in its recent landmark, State vs. Henderson decision last month, there is ‘a troubling lack of reliability in eyewitness identifications.’”

This again having surfaced via the execution of Troy Davis that evening.

The CNN article went on to say that “a study released earlier, last Monday, by the American Judicature Society, analyzing 850 photographic lineups, found that mistakes in identification are often related to how the photos of a line-up are presented. It found if a person uninvolved in the case presents the photos one-by-one, rather than all at once, fewer mistakes are made. Another critical factor is whether the authority presenting the photos knows who the suspect is.”

Collectively, as earlier posted, while the Henderson decision applies only to New Jersey, it is likely to have considerable impact nationally,” according to a New York Times article last month. “The state’s highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.”

A New York Times article a few days earlier covering the story, noted that the U.S. Supreme Court, in November, is scheduled to “return to the question of what the Constitution has to say about the use of eyewitness evidence, when it hears Perry v. New Hampshire, 10-8974. The last time the court took a hard look at the question was in 1977 with Manson v. Braithwaite. Since then, the scientific understanding of human memory has been transformed and more than 2,000 studies on the topic have been published in professional journals in the past 30 years… What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.”

New Ohio juvenile laws

Ohio’s recently-passed House Bill 86, signed by Gov. Kasich last June and going into effect end of this month, touched on elements of the state’s sentencing laws, penalties for drug offenses, prison, parole, and halfway house issues.

It also contains a number of juvenile justice provisions including:

· Competency of an alleged delinquent child and procedures for minors found incompetent under that mechanism including as parts a provision that specifies that if the minor is the subject of any such proceeding is 14 or older, is not otherwise found mentally ill, intellectually disabled, or developmentally disabled, it is rebuttably presumed for purposes of the competency determination that the child does not have a lack of mental capacity [ R.C. 2152.51 to 2152.59 ]

· Mandatory bindover provisions & sanction determinations of alleged delinquent child respective of minors convicted of a crime in criminal court after their case is transferred from juvenile under a if the child is alleged to be a delinquent child for committing an act that would be aggravated murder, murder, attempted aggravated murder, or attempted murder if committed by an adult, or if said minor is alleged to have had a firearm while committing the act….. [ ORC § 2151.23,2152.02, 2152.021, 2152.12, 2152.121, 2152.13, and 2152.14 ]

· Possible commitment to DYS for complicity in firearm specification conduct [ §2152.17(B)(1) and 2152.17(B)(2))]

· Judicial release to DYS or court supervision [ § 2152.22, 5139.01, 5139.06, 5139.18, and 5139.52 ]

· Emergency release of a delinquent child committed to DYS [ § R.C. 5139.20(D)]

“Lawyers, judges and clinicians currently use the same standards with minors as they do when considering the competency of adults, which ‘doesn't always work very well because of the differences between the nature of kids and adults,’ Jill Beeler, chief juvenile counsel in the Ohio public defender's office,” reported in a USAToday article this morning. “ ‘Juvenile norms’ are supposed to be applied, though nothing in the law spelled out what those norms were…. the new state law taking effect Sept.30 provides psychologists and psychiatrists with four sets of characteristics to signal whether a juvenile is competent, The Columbus Dispatch added.

You and The Legal System: Personal Injury

Brett Goodson of Goodson & Co., Ltd., a Cincinnati trial lawyer whose practice focuses on personal injury, is the next speaker in our You and the Legal System series for the public. He will speak about personal injury this Friday, September 16, 2011 at 12:00 noon at the Law Library. The program is free to the public. To register, call 513.946.5300.
Mr. Goodson will address these points:
• What is a personal injury case?
• What is a Tort?
• How do I know if my injury results in a personal injury case?
• Can a death caused by negligence be a personal injury case?
• What are my time limits for making a claim?
• How is the value of a personal injury case decided?
• What if I want to settle without filing a lawsuit?
• How much do attorneys charge?
• Other types of cases
• What is tort reform?
Please note that this is not a CLE event; it is intended for the general public. However, attorneys are welcome to attend and may also want to pass along the program announcement to clients, staff, and community organizations. You and the Legal System is brought to you as a public service by the Hamilton County Law Library, in conjunction with the Cincinnati Bar Association’s Lawyer Referral Service.

Ohio announces death penalty taskforce

Ohio Supreme Court Chief Justice Maureen O'Connor yesterday announced the formation of a new joint task force to review the state's death penalty law and determine if changes should be made, but with an important caveat: It won't debate whether Ohio should have capital punishment.

“A 2005 review of 20 years of capital punishment data by The Associated Press concluded that death sentences varied widely depending on where in the state charges were brought,” USAToday.com reported this morning.

“As it stands,” USAToday said, “the state is the midst of an unofficial death penalty moratorium while a federal judge decides whether the policies Ohio follows for carrying out executions are constitutional. Three executions have already been postponed and on Thursday defense attorneys filed a motion to delay an execution scheduled for next month.”

The 20-member task force convened by the Supreme Court and the Ohio State Bar Association, will consist of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts, who will review Ohio's current laws, practices elsewhere, data and costs, as well as a 2007 report released by the American Bar Association that called for a moratorium while problems the report said it had identified were examined. ( Report )( executive summary )

In 2001, the American Bar Association created its Death Penalty Moratorium Implementation Project to carry out its goal of a nationwide moratorium unless and until problems within the administration of capital punishment are rectified. “Through research, outreach, and education, the Moratorium Project encourages jurisdictions to undertake a comprehensive examination of their capital punishment laws and processes in order to eliminate identified flaws and to suspend executions while undergoing this process,” ABA says.

“Several state assessment reports have recommended undertaking moratoriums on executions until the state appropriately addresses the recommendations contained within it. In each assessed capital jurisdiction, the actual practices of the capital jurisdiction is compared to a series of recommendations on the administration of the death penalty, based on the original ABA Protocols on the Administration of Capital Punishment (2001) and the revised version (2010)”… Although several states have conducted limited reviews or studies, only Illinois has conducted the type of review that the ABA has concluded is essential to identify and address core problems in the administration of the death penalty. Illinois abolished capital punishment March 9, 2011.

Ohio and Indiana are among the eight states having completed assessments, with Kentucky and Missouri currently being worked on.

ABA client confidentiality ethics opinion

The ABA issued a new formal ethics opinion last month with respect to protecting clients’ confidentiality when using work computers or e-mail accounts.

Formal Opinion 11-459, from the ABA Standing Committee on Ethics and Professional Responsibility, issued last month, in part says “In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive lawyer-client communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party,” ( More Here )

ABA seeking judicial recusal standard

An article from the Birmingham News this morning says “The American Bar Association, in a newly adopted policy, is urging states to set rules for judges to step down from cases involving campaign contributors, a sign of growing national anxiety over the influence of political money in the judicial system.

Thirty-nine states elect their judges, the article said, and the ABA said 20 percent of them have started to reexamine the issue of disqualification since the U.S. Supreme Court decision in 2009 regarding campaign contributions creating the appearance of bias. Alabama was at the forefront 16 years ago, when legislators passed a law calling for local judges to recuse themselves if a party or their lawyer contributed $2,000 to the judge's election; $4,000 for state appellate judges. But in a quirky stalemate between the Alabama Attorney General's Office and the Alabama Supreme Court, the law has never been enforced.

Back on March 3^rd., Ohio’s supreme court adopted amendments to its recusal/disqualification rules of practice which became effective in April.

Also, many regarded the Supreme Court’s decision in Caperton v. A.T. Massey Coal in June as landmark.

The U.S.Sixth Circuit further defined the scope of judicial recusal under federal law by weighing in on a judge’s close personal relationship with an attorney involved in a case in United States v. Prince (6th Cir., Case No. 08-6547, Aug. 26, 2010) [ Sixth Circuit Appellate Blog had more here ]

Ohio prison law library access

The Mansfield News Journal carried a story yesterday morning about a Richland Correctional Institute inmate’s suing the state prison system, claiming his civil rights were violated when bound legal books were replaced with computers.

Richland County inmate Dwayne Harris, convicted of rape, kidnapping, felonious assault, and aggravated assault in 1989, saying he no longer had access to law books, after RiCI's law library removed a number of books, replacing them with seven computers with access to Westlaw, an online legal research service. He says he’s computer-illiterate and doesn't know how to use them to access legal information, claiming a violation of his constitutional rights and seeking a jury trial and damages of $20,000 from each of the four defendants, plus $50,000 from each of the four as punitive damages.

A conversion from bound books to Westlaw has been occurring over the past 12 years, prison officials told the Journal. "In the last 18 months to two years,” Ohio Corrections spokesman Carlo LoParo said, “state-wide, throughout all of our 32 facilities, actual hard-copy books have not been being updated, in lieu of providing services online because the information provided online through Westlaw is more comprehensive and up to date…. and, the law librarians and inmate clerks are all available to assist inmates who do not have the technical ability to navigate the system on their own."

The Supreme Court in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491 (1977), held that the fundamental constitutional right of access to courts requires prison authorities to provide adequate law libraries or adequate assistance from persons trained in the law. In 1996, in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 it held that prisoners do not have an abstract freestanding right to a law library and must demonstrate actual injury in order to sustain a challenge to the adequacy of the law library.

One interesting aside is that in 2005, in Kane v. Espitia, 546 U.S. 9, 126 S.Ct. 407, the Supreme Court also held that “While Faretta v. California, 422 U. S. 806 ( ) establishes a Sixth Amendment right to self-representation, it does not “clearly establis[h]” a law library access right… A necessary condition for such relief is that the state-court decision be “contrary to, or involv[e] an unreasonable habeas application of, clearly established Federal law, as determined by” this Court.
28 U. S. C.§ 2254(d)(1).”

Ohio death penalty update

A Cleveland Plain Dealer article yesterday relates that Ohio Gov. John Kasich last Friday delayed the execution of Billy Slagle by nearly two years, until Aug. 7, 2013, as the state “continues efforts to tighten up its capital punishment procedures.”

Last July, U.S. District Judge Gregory Frost issued an injunction stopping the execution of Kenneth Smith, there criticizing the state's execution procedures and causing the corrections department to revise its practices. His execution has not been rescheduled.

Hearings & schedules in that case have been revised thru December when a non-oral hearing on all motions for summary judgment will be heard.

Slagle, for his part in the District Court case, has a hearing scheduled on a temporary restraining order and preliminary injunction next week

Proposed Ohio Supreme Court Probate Forms

The Ohio Supreme Court has announced it will be accepting public comment until Oct. 4 on seven new standard probate court forms.

Amendments cover Standard Probate Forms 24.0 through 24.6:

•Standard Probate Form 24.0 – Representation of Insolvency•Standard Probate Form 24.1 – Judgment Entry Setting Hearing and Ordering Notice
•Standard Probate Form 24.2 – Notice of Hearing on Representation of Insolvency and Schedule of Claims
•Standard Probate Form 24.3 – Verification of Service: Notice of Hearing on Representation of Insolvency and Schedule of Claims
•Standard Probate Form 24.4 – Insolvency Schedule of Claims
•Standard Probate Form 24.5 – Continuation Insolvency Schedule of Claims
•Standard Probate Form 24.6 – Judgment Entry of Insolvency

Read the complete language of the proposed forms (Here)

Comments on the proposed forms should be submitted in writing to:

John VanNorman, Policy and Research Counsel
Supreme Court of Ohio
65 S. Front St., Seventh Floor
Columbus, OH 43215

Or via e-mail to john.vannorman@sc.ohio.gov.

Felony murder review

The Athens News last Wednesday had an article about “a highly publicized criminal case from Athens County that may be used to test the way Ohio courts sentence criminals who commit felonies during which someone gets killed.

“The Athens County Prosecutor's Office has asked the Ohio Supreme Court to review an appellate court's ruling in a case stemming from a 2009 shootout in New Marshfield. A statewide prosecutor's organization has added its support, suggesting that the case of Abdifatah Abdi raises a very important legal issue, which could affect how courts across the state handle felony cases in which someone dies as a predictable result of a violent crime a bank robbery, for example, in which a bank guard is shot to death.” (Athens Co. document )(Ohio Prosecutors’ brief)

The victim in the case wasn’t even shot with Abdi’s gun, according to attorney Heaven DiMartino of the Ohio Prosecuting Attorneys Association, but “What's at issue in Abdi's case,” the article points out, “is whether a person charged with so-called "felony murder" can be given a separate sentence for the "underlying felony" that allowed the felony murder charge to be filed in the first place. In Ohio, as in other states, a person who commits a violent felony in which someone gets killed can be charged with murder, regardless of whether the defendant actually killed someone himself.” ( See Revised Code 2941.25 )

“In a decision issued this past July, the article says, “the 4th District Court of Appeals rejected most of the arguments by defense attorney Russell Bensing on why Abdi should have his conviction overturned. It did find merit, however, in Bensing's claim that Abdi should not have been sentenced separately for the robbery and the murder that resulted from it, because these two charges were essentially based on the same set of actions, and therefore qualified as ‘allied offenses of similar import.’”

The December 2010 State v. Johnson ruling by the Ohio Supreme Court significantly changed the rules on "merging" felony offenses, suggesting that offenses based on the same set of actions and intentions by the criminal can't be sentenced separately. Clarifying the meaning of the Johnson ruling is the main reason why Athens County Prosecutor Keller Blackburn is asking the Supreme Court to review the Abdi decision.

Blackburn and the prosecutors association feel the 4^th. District misapplied Johnson in its consideration of the above case.

Ohio prison privatization suit

A Franklin County, Ohio Common Pleas Court Judge has denied a request from the liberal policy group ProgressOhio to block Ohio from selling its prisons, but he has agreed to hear arguments on the constitutionality of the law that permits the sales. The suit had alleged both along with wanting workers at privatized prisons to be designated as public employees.

USAToday headlines say the ruling permits the state to move ahead with its plans to announce the company or companies that have been awarded contracts to buy and operate the sites later today.

ProgressOhio is that same group that previously sued over Gov. John Kasich's privatization of Ohio's economic development functions has filed a similar lawsuit challenging privatization of five state prisons.

ProgressOhio’s statement on their Private Prisons Lawsuit TRO decision – including a copy of that decision – can be viewed here

The Columbus Dispatch also has an article..

Ohio upholds death penalty in mental impairment case

The Ohio Supreme Court unanimously upheld the death penalty for Edward L. Lang yesterday -- convicted in 2007 of killing two people in Canton -- the Canton Repository reported yesterday, but with the ruling came a call by three justices for state legislators to examine whether Ohio should continue to execute those who are mentally ill.

The majority opinion in pertinent part on the mentally ill issue said “We find that the R.C. 2929.04(B)(3) factor is not applicable because no evidence was presented showing that “at the time of committing the offense, the offender, because of a mental disease or defect, lacked substantial capacity to appreciate the criminality of the offender’s conduct or to conform the offender’s conduct to the requirements of the law. However, we give some weight to Lang’s mental problems under the catchall provision, R.C. 2929.04(B)(7). Testimony showed that Lang suffered from depression and received extensive psychological and psychiatric treatment… But again, there was no evidence of any significant connection between Lang’s mental illness and the murders…” (ORC § 2929.04 )

While she joined the majority in affirming Lang’s convictions and death sentence, the Court’s summary revealed, Justice Evelyn Lundberg Stratton also entered a concurring opinion… “Noting that major professional associations including the American Bar Association, American Psychiatric Association and American Psychological Association have adopted policy statements recommending against execution of persons who were severely mentally ill at the time of their offense, Justice Stratton, citing her prior concurring opinion in State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,wrote: ‘(W)hile I personally believe that the time has come for our society to add persons with severe mental illness to the category of those excluded from application of the death penalty, I believe that the line should be drawn by the General Assembly, not by a court. ... [N]othing prevents the legislature from examining and using those ... evolving standards [of decency]. In fact, it is the legislature’s role to do so. Therefore, I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death.’”

The Death Penalty Information Center references the mental health issue:

“Insanity or mental incompetency is a severe form of mental illness and is addressed separately by the legal system. Inmates who are insane, that is, so out of touch with reality that they do not know right from wrong and cannot understand their punishment or the purpose of it, are exempt from execution. The Supreme Court held in Ford v. Wainwright (477 U.S. 399 (1986)) that executing the insane is unconstitutional. However, if an inmate's mental competency has been restored, he or she can then be executed. Inmates who are intellectually disabled (mentally retarded) also cannot be executed. Inmates who are mentally ill, but not insane, have no such exemption.”

State v. Lang, 2011 Ohio 4215